Adoption of L.J.
Filed 1/23/13 Adoption of L.J. CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Amador)
----
Adoption of L. J., a Minor.
G. S.,
Plaintiff and Respondent,
v.
J. J.,
Defendant and Appellant.
C070964
(Super. Ct. No. 11FCO04440)
J. J.
(appellant) is the biological father of L. J.
He appeals from a court order freeing L. J. from appellant’s
Code
section 7822. On appeal, appellant
argues there was insufficient evidence
to prove he intended to abandon L. J. within the meaning of section 7822. We disagree and affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
A
Mother and
appellant were married in April 2005.
One year later, L. J. was born.
In July 2007, mother and appellant separated; mother moved in with her
parents in Yorba Linda, California,
taking L. J. with her. Shortly
thereafter, mother obtained a temporary restraining order against
appellant. Appellant was properly served
with the temporary restraining order, which included notice of an upcoming
hearing on a permanent restraining order.
Despite receiving notice, appellant did not attend that hearing.
The
Superior Court of California in Riverside County subsequently issued a
three-year domestic violence restraining order prohibiting appellant from
contacting, either directly or through third parties, mother, L. J., and L.
J.’s half brother. Attached to the
restraining order was a custody order, granting sole legal and physical custody
of L. J. to mother and denying appellant visitation. At or about the same time mother obtained the
permanent restraining order, a criminal complaint was filed in Riverside
County charging appellant with
domestic violence. That charge was later
reduced to a misdemeanor for disturbing the peace.
In the fall
of 2008, the Superior Court of California in
County ordered appellant to pay $900 a month in child support for L. J.
payments were “sporadic.†Appellant made
partial support payments through a wage garnishment order in January and
February 2009, but paid no child support between March 2009 and January
2010. Thereafter, appellant made partial
child support payments through a wage garnishment order.
In July
2009, following a contested hearing where mother, appellant and L. J. each were
represented by separate counsel, mother and appellant obtained a judgment in
Orange County Superior Court dissolving their marriage. Included in that judgment was an order
granting mother sole legal and physical custody of L. J. and awarding appellant
supervised visitation with L. J. for three hours every Saturday. The order allowed appellant to use either a
“non-professional†to supervise his visits with L. J., provided that person was
approved by mother, or choose from the list of professional supervisors
included in the order.
In October
2010, after living with her parents for three years, mother married G. S. and
moved to Amador County. In January 2011, in Amador
County, G. S. filed a petition to
declare L. J. free from appellant’s custody and control so that G. S. could
adopt her. In support of his petition,
G. S. argued appellant abandoned L. J. by failing to communicate with her or
provide her with support in the 12 months preceding the petition. Appellant, who had not had any contact with
L. J. since July 2007, opposed the petition and the matter went to trial.
B
Appellant’s Custody
The first
trial on the petition to free L. J. from appellant’s custody and control, which
began on August 23, 2011, ended in a mistrial.
The second trial began on January 18, 2012.
1.
Testimony
Mother
explained she obtained the domestic
violence restraining order against appellant because he was physically and
verbally abusive to her during their marriage.
While she was pregnant with L. J., appellant kicked her in the stomach,
punched her in the face, held knives to her throat, and threatened her. Because of appellant’s violent conduct,
mother previously filed a petition in Orange County to terminate his parental
rights to L. J., but she could not locate appellant to serve him with the
petition.
Appellant
had no contact with L. J. after mother left him in July 2007. Before she moved to Amador County in 2010,
however, mother lived with her parents; appellant knew mother’s parents and he
knew where they lived. Mother believed
appellant was permitted to contact L. J. through her parents if his contact was
peaceful, but his contact with her parents had not been peaceful and after
making threatening and harassing phone calls to mother’s parents, they obtained
a criminal protective order against him.
Mother also believed appellant was permitted to contact L. J. through
mother’s attorney, but he never did. In
any event, mother maintained a current address with the Orange County
Department of Child Support Services.
In July
2009, appellant was granted supervised
visitation with L. J., but he never exercised that right. According to mother, it was not until six
months after the petition to free L. J. from appellant’s custody was filed that
appellant made any effort to contact L. J.
Then, in the spring of 2010, appellant filed a motion seeking
visitation, and in November 2011, appellant sent L. J. a gift for the first
time -- a sweatshirt. L. J., six years
old at the time of trial, recognized G. S. as her father, though she knew he was
not her biological father. L. J. only
knew appellant’s name, she had no memory of him.
At the time
of trial, appellant owed mother approximately $25,000 in child support
arrears. The last support payment she
received from appellant was for $22, and his payments were always made through
a wage garnishment order.
2.
Testimony
At the time
of trial, appellant lived in Riverside County with his girlfriend, who
supported him financially. He admitted
to losing his nursing license as a result of violating the restraining order
obtained by mother. He explained that,
after he violated the order, his nursing license was suspended and he was put
on probation. When appellant completed
the paperwork to have his license reinstated, he omitted the number of times he
violated the restraining order.
name="_ftnref3" title="">[3] Appellant claimed the omissions were
inadvertent, he thought he had provided the correct information. He nevertheless lost his nursing license.
After
losing his nursing license, appellant’s only source of income was his unemployment benefits. He became a certified parenting and anger
management instructor but worked only as a volunteer. He was, however, trying to turn his volunteer
work into a business that would provide parenting, coparenting, anger
management, and batterer’s intervention classes. He anticipated that business would generate
income from which he could pay child support.
Appellant
said he never intended to abandon L. J., but admitted he had not seen her in
nearly four years. He said he did not
attend the hearing on the permanent restraining order because, at the time, he
and mother were “communicating†and had agreed to go to counseling. Then, the morning of the hearing on the
permanent restraining order, mother told him not to attend, to go to work
instead because they needed the money.
He indicated mother told him she would not be attending the
hearing. Following the time scheduled
for that hearing, according to appellant, mother continued to text him and talk
to him on the phone. Appellant said he
did not know about the permanent restraining order until later, when his family
law attorney advised him the court had issued the order. Criminal
charges were then filed against him for domestic violence.
Appellant
acknowledged that in 2009 he was awarded supervised visitation with L. J., but
said he could not afford to pay for the supervision. He also said he was “advised†to settle the
pending criminal charge of domestic violence before he “made any attempts to see [L. J.].†He was advised not to see L. J. while the
criminal case was pending.
Once the
criminal charges were resolved, appellant said he contacted “the supervising
agency†to arrange visitation with L. J., but he no longer knew where mother
and L. J. were living. He did not
contact mother’s parents to find L. J. because their relationship with him was
“not good,†and he was “worried†about violating the restraining order again. He said he did try to contact mother through
her attorney of record but received no response. At some point, appellant received a
substitution of attorney, pursuant to which mother’s attorney of record “subbed
. . . out.†Mother’s attorney
returned to the case approximately 14 months later when the petition to free L.
J. from appellant’s custody was filed.
Appellant had no contact with mother’s attorney in the interim.
When asked
about child support, appellant said he paid support whenever he had
income. It was also his understanding
that, absent an agreement to the contrary, all child support in Orange County
was paid through wage garnishment orders.
He and mother had no such agreement.
Appellant admitted he made no provisions for L. J.’s support while he
was unemployed, but noted he had made no provisions to support himself
either. At the time of trial, he
believed the order for child support required him to pay $160 per month.
Appellant
also admitted his parental rights to another of his children had been
terminated because he failed to pay child support or contact the child for a
year. The mother of that child also
obtained a domestic violence restraining order against appellant. Appellant has a third minor child, 16 years
old at the time of trial, whom he had not seen since 2007. That child’s mother also obtained a
restraining order against appellant, but the order had terminated and he said
he was making efforts to see that child.
Appellant also has two adult children, twins, with whom he claimed to
have a good relationship.
3. Trial
Court’s Ruling
The trial
court took the matter under submission and issued a written decision on
February 14, 2012. The court granted the
petition to free L. J. from appellant’s custody. In reaching its decision, the court found L.
J. did not know appellant; she considered G. S. to be her father. The court also found there were numerous
means by which appellant could have located L. J. and mother after he was
granted supervised visitation but failed to make any “significant†effort to do
so. The trial court expressly found
incredible appellant’s testimony that he did not maintain contact with L. J.
because mother “hid†the minor from him.
The trial
court further found that even if he could not locate L. J., appellant could
still have supported her financially but he did not. As noted in the trial court’s decision, at
the time of trial, appellant had paid a total of only $1,300 in child
support. In sum, the court ruled there
was clear and convincing evidence appellant intended to abandon L. J. Moreover, G. S. was the only father L. J. had
ever known. It was, therefore, in L.
J.’s best interests to free her from appellant’s custody so G. S. could adopt
her.
DISCUSSION
Appellant
argues there was insufficient evidence to support the court’s order terminating
his parental rights. He concedes he had
no contact with the minor for the four years preceding the petition, but argues
that was not his fault. He further argues
that during the same period, he paid as much support for the minor “as . . . he
was able†given his “circumstances.†We
are not persuaded.
A
A
proceeding to have a child declared free from the custody and control of a
parent may be brought under section 7822 where “[o]ne parent has left the child
in the care and custody of the other parent for a period of one year without
any provision for the child’s support, or
without communication from the parent, with the intent on the part of the
parent to abandon the child.â€
(§ 7822, subd. (a)(3), italics added.) A parent’s “failure to communicate†with the
child for a period of one year or more “is presumptive evidence of the intent
to abandon. If the parent [has] made
only token efforts to . . . communicate with the child, the court may
declare the child abandoned by the parent . . . .†(§ 7822, subd. (b).)
Whether a
parent has intentionally abandoned a child within the meaning of section 7822
is a question of fact for the trial court.
(Adoption of Allison C. (2008)
164 Cal.App.4th 1004, 1011.) We
review the court’s findings for substantial evidence -- evidence that is
reasonable, credible and of solid value.
(Ibid.) Our review does not permit us to consider the
credibility of witnesses, attempt to resolve conflicts in the evidence or weigh
the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to
the trial court’s order and affirm the order even if there is substantial
evidence supporting a contrary finding.
(In re L. Y. L. (2002)
101 Cal.App.4th 942, 947.) The
appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the court’s finding or order. (In re
L. Y. L., at p. 947, Adoption of
Allison C., at p. 1011.)
B
J. For The Statutory Period
Appellant
contends there is insufficient evidence he intended to abandon L. J. He concedes he failed to maintain contact
with L. J. for more than the statutory period.
He also concedes such a failure gave rise to the presumption he intended
to abandon L. J. He nevertheless argues
he rebutted the statutory presumption.
We disagree.
1.
Supervised Visitation Superseded
The Prior
No-Contact Order
Appellant
first contends the restraining order prevented him from contacting L. J. until
it expired in July 2010, six months before the petition to free L. J. from his
custody was filed. The record does not
support appellant’s contention.
In July
2009, nearly 18 months before the petition to free L. J. from appellant’s
custody was filed, the trial court granted appellant supervised visitation with
L. J. every Saturday for three hours.
Appellant never exercised that right.
He now argues he did not contact L. J. after he was granted supervised
visitation because the order granting him supervised visitation conflicted with
the restraining order and “the restraining order takes priority over the
judgment.†Appellant is wrong.
The
restraining order issued was not a “protective order issued in a criminal case
on Form CR-160,†which “takes precedence in enforcement over any conflicting
civil court order. (Pen. Code, §
136.2(e)(2).†Nor was it “[a]n emergency
protective order (Form EPO-001) that is in effect between the same parties,â€
which “is more restrictive than other restraining orders [that] takes
precedence over all other restraining orders.
(Pen. Code, § 136.2.)†Rather, it
was a domestic violence restraining order issued pursuant to section 6200 et
seq. It is not, therefore, in the class
of restraining orders that take precedence over subsequent, conflicting civil
orders. (See Pen. Code, § 136.2,
subd. (e) [addressing restraining orders issued by a criminal court after
criminal charges are filed for domestic violence].)
Indeed,
section 3031 expressly provides that under certain circumstances, a custody
order is enforceable, even if it conflicts with a previously issued restraining
order: “(a) Where the court considers the issue of
custody or visitation the court is encouraged to make a reasonable effort to
ascertain whether or not any emergency protective order, protective order, or
other restraining order is in effect that concerns the parties or the
minor. The court is encouraged not to
make a custody or visitation order that is inconsistent with the emergency
protective order, protective order, or other restraining order, unless the
court makes both of the following findings:
“(1) The
custody or visitation order cannot be made consistent with the emergency
protective order, protective order, or restraining order.
“(2) The
custody or visitation order is in the best interest of the minor.
“(b)
Whenever custody or visitation is granted to a parent in a case in which a
domestic violence is alleged and an emergency protective order, protective
order, or other restraining order has been issued, the custody or visitation
order shall specify the time, day, place, and manner of transfer of the child
for custody or visitation to limit the child’s exposure to potential domestic
conflict or violence and to ensure the safety of all family members.
. . .
“(c) When
making an order for custody or visitation in a case in which domestic violence
is alleged and an emergency protective order, protective order, or other
restraining order has been issued, the court shall consider whether the best
interest of the child, based upon the circumstances of the case, requires that
any custody or visitation arrangement shall be limited to situations in which a
third person, specified by the court, is present, or whether custody or
visitation shall be suspended or denied.â€
Here, the
record does not include a reporter’s transcript of the hearing related to the
July 2009 order for supervised visitation.
We must, therefore, presume the trial court properly executed its duty
in using reasonable efforts to ascertain whether there was a restraining order
in effect before determining the order for supervised visitation was in L. J.’s
best interest. (See Evid. Code, § 664
[it is presumed that official duty has been regularly performed]; see also
583 [we must adopt all inferences in favor of the judgment].) Such a presumption is further supported by
the fact that appellant, mother, and L. J. each were represented by counsel at
that hearing and the order for visitation was detailed and specific, as
contemplated by section 3031. Thus,
the restraining order did not supersede the later issued order for supervised
visitation.
Similarly,
and contrary to appellant’s claim, the custody order attached to the
restraining order did not supersede the subsequently issued order for
supervised visitation. Thus, appellant’s
claim that the restraining order prevented him from maintaining contact with L.
J. after July 2009, fails.
2.
Effort To Find A
Nonprofessional
Person To Supervise Visitation With L. J.
Appellant
further contends he did not contact L. J. after the order for visitation was
issued because he could not afford to pay for professionally supervised
visits. Appellant was not, however,
limited to professional supervision. The
order for visitation allowed either a “non-professional
person who is selected by [mother],
following named groups†to supervise appellant’s visits with L. J. (Italics added.) There is no evidence in the record that
appellant made even a token effort to find a nonprofessional person to
supervise his visits with L. J.
Accordingly, this argument also fails.
3.
J. After He Was Granted
Supervised
Visitation
Appellant’s
claim that he could not locate L. J. after he was granted supervised visitation
is not supported by the record.
Appellant makes numerous excuses for his claimed inability to find L.
J.: he was afraid of mother’s parents,
mother’s attorney would not return his calls, mother no longer had an attorney,
or he was afraid of violating the restraining order again. Appellant made these same arguments in the
trial court. The trial court was not
persuaded and neither are we.
Appellant
had no trouble violating the restraining order to have inappropriate contact
with mother’s parents, yet could not bring himself to contact them in order to
make contact with L. J. Appellant and
mother were both represented by counsel when the order for visitation issued,
yet appellant made no effort to utilize counsel as a conduit for making contact
with L. J. or scheduling visitation.
Moreover, as noted by the trial court, mother always had a current
address on file with the Orange County Department of Child Support Services;
she never made her whereabouts a secret.
C
Court’s Decision
In sum,
there is substantial evidence to
support the trial court’s decision that appellant’s excuses are just that --
excuses. He made no real effort to
contact L. J. during the nearly year and one-half he was permitted supervised
visitation with the child before G. S. filed his petition. Appellant has, therefore, failed to rebut the
presumption that his failure to maintain contact with L. J. for the statutory
period established his intent to abandon the child. We thus affirm the trial court’s order.
DISPOSITION
The order
of the court is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
name="_ftn1" title="">[1]
Subsequent statutory references
are to the Family Code unless otherwise indicated.
name="_ftn2" title="">[2]
Child support was being litigated
in a separate action by the Orange County Department of Child Support
Services.
